Standing Committee A

[Mr. Roger Gale in the Chair]

Animal Welfare Bill

Roger Gale: Good morning. Before we begin, there are several housekeeping matters to which to attend. May I remind the Committee that there is a money resolution to the Bill? Copies are available in the Room. I also remind hon. Members that adequate notice should be given of amendments, because, as a general rule, my co-Chairman and I do not intend to call starred amendments.
I hope that it goes without saying that hon. Members should ensure that phones, pagers and other electronic devices are turned off—I am sure that anyone in the Chair deprecates the rule of phones. I know that we do not recognise the Public Gallery, but I would appreciate it if those who are not there could also turn off their phones. 
It is entirely up to hon. Members to take responsibility for any interests, pecuniary or otherwise, and to determine whether they believe it necessary to declare interests in any outside body. I say that because I propose to place on record the fact that I am president of the Conservative Animal Welfare Group, although I do not propose to allow that in any way to influence any decision that I take in the Chair. Any other Members who have similar interests that they want to place on the record may do so in a moment. 
The Minister has told me that a letter from the Department of Environment, Food and Rural Affairs on tail docking has been placed on the Table. That has been done with my consent; I believe that the more information that is available to hon. Members, the better. 
Finally, for the convenience and comfort of Members, may I point out that any Member who wants to remove his or her jacket may do so, so long as I am in the Chair? I cannot speak for Mrs. Humble.

Ben Bradshaw: I beg to move,
That— 
(1) during the proceedings on the Animal Welfare Bill the Standing Committee shall (in addition to its first meeting at 10.30 am on Tuesday 17th January) meet— 
(a) at 4.00 pm on Tuesday 17th January; 
(b) at 9.00 am and 1.00 pm on Thursday 19th January; 
(c) at 10.30 am and 4.00 pm on Tuesday 24th January; and 
(d) at 9.00 am and 1.00 pm on Thursday 26th January. 
(2) the proceedings shall be taken in the following order: Clauses 1 to 11; Schedule I; Clauses 12 to 47; Schedule 2; Clauses 48 to 58; Schedule 3: Clause 59; Schedule 4; Clauses 60 to 63; new Clauses; new Schedules; remaining proceedings on the Bill; 
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 4.00 pm on Thursday 26th January.) 
I begin by warmly welcoming you to the Chair, Mr. Gale. I look forward to steering the Bill through Committee under your guidance. As you have already intimated, you are president of the Conservative Animal Welfare Group, so you have some expertise in the subject, which can only be helpful during our deliberations. As you know, this is the first time that I have steered a Bill through Committee as a Minister, and I seek your help and guidance, and that of the rest of the Committee, to get through our business smoothly in the next fortnight. 
I also welcome to the Committee the hon. Members for Leominster (Bill Wiggin) and for Lewes (Norman Baker), who asked on Second Reading for a constructive and open dialogue with the Government in the remaining proceedings on the Bill. I believe that we have done fairly well so far, and I look forward to working with Opposition Front Benchers to place the Bill on the statute book as soon as possible. Finally, before I discuss more substantial matters, I welcome all members of the Committee. 
We have provided for eight sittings to debate the Bill. We believe that that is an appropriate number, given the length of the Bill and the extensive pre-legislative scrutiny of it. The Bill has already undergone pre-legislative and post-introduction scrutiny by the Select Committee on Environment, Food and Rural Affairs, and we made several improvements and amendments to the Bill in the light of that pre-legislative report. As my right hon. Friend the Secretary of State for Environment, Food and Rural Affairs did on Second Reading, I take this opportunity to pay tribute to the Select Committee, and particularly to its Chairman, the right hon. Member for Fylde (Mr. Jack), for the Committee's deft handling of the process and its helpful reports. 
I recognise that many of the Bill's provisions are of interest, and that some are controversial. Inevitably, we shall not always see eye to eye on some of the measures. I am, however, sure that the debates will be constructive and that the Committee will co-operate to cover all the necessary points in the time allowed.

Bill Wiggin: First, I join the Minister in saying what a pleasure it is to serve under your chairmanship, Mr. Gale. I agree with what he said about wanting the Bill to be enacted. It is a very opportune moment for us to discuss it, as it has many good points that the Conservatives want to be enacted, but we will do our very best in Committee to improve it if we can.
I also welcome the Minister to steering his first Bill through Committee. Historically, Ministers have tended not to budge an inch at this stage of a Bill's progress, but his comments about pre-legislative scrutiny reminded me that I served on that Select Committee and there was a concern because we were scrutinising not a Bill, but a draft Bill. That made a difference because the Government's intentions were not as clear as they would have been in a proper Bill. There were constraints on what the Committee could do, particularly in the very short time it had. However, the Government listened and improved the Bill and we will continue to improve it. 
I do not have a very long or glamorous list of interests to declare, but I am a countryside member of the National Farmers Union and the Countryside Alliance. I also have a number of chickens. That causes me a great deal of concern with regard to this Bill because a duty of care might be used against me. I worry about that all the time, as any animal lover should. I worry because what we want from the Bill is proper care for creatures. We do not want endless malicious or unpleasant prosecutions. I fear that that may happen unless we get the Bill right. 
I also have three cows, two of which are pregnant, so I am braced to seeing my herd increase. Clearly my farming is very minimal. I have seven acres but they are now fully declared. I look forward to dealing with the Bill as the amendments we have tabled are considered. Their aim is either to probe in a constructive way and to tease out the details of what the Minister really feels or, in some cases, to try to improve the Bill for our constituents and all animal lovers across the United Kingdom. 
There is one more point about which I do not want to antagonise the Minister, but I was given his letter as I walked in here today. As I understood the Government's position, they favoured the status quo on tail docking. That means that the onus has been on people who do not like tail docking to bring forward their evidence and arguments against the practice, and that has been done very effectively by all the non-governmental organisations. This letter suggests that the Government are much more ambivalent about the outcome than before. Therefore I am slightly critical of that shift in Government policy at this stage, but we can work with that as we get through the Committee stage.

Norman Baker: May I also welcome you to the Chair, Mr. Gale? With your considerable knowledge and expertise in this matter, I am sure that you will keep us in order when we stray from the Bill and will not allow us to introduce any red herrings into our discussions. I should also declare my interests. I am responsible for two protected animals but, given that they are cats, they would probably regard themselves as independent rather than protected. I also have an unpaid, honorary position with the Royal Society for the Protection of Animals.
I support the timetable motion. I also want the Bill to progress in the spirit of constructiveness and to emerge in the strongest and most coherent form. My colleagues and I will do our level best to achieve that. The Minister will know that some of us served on Standing Committee on the Natural Environment and Rural Communities Bill with the Under-Secretary of State for Environment, Food and Rural Affairs, the hon. Member for South Dorset (Jim Knight). We were all impressed by his flexibility. He certainly held to the Government's position. He did not compromise, but he was also prepared to listen and to make amendments. As a consequence, the Bill was stronger in the end and he came out of it with considerable respect. 
I hope and am confident that the same can be said of the present Minister at the end of our proceedings. I would ask him at some point to clarify how his party  will deal with the issue of whipped or free votes. My party regards the Bill as a whipped Bill but there will be free votes on issues such as tail docking or electric shock collars or anything else that may come up. It would be helpful if the Minister could put on the record how he will deal with that. Will his colleagues have a free vote on tail docking? 
Question put and agreed to.

Roger Gale: Before we commence the debates, for the benefit of hon. Members who have not already served on Committees that I have chaired, I should point out that I take a fairly relaxed view of clause stand part debates. There are occasions when it is entirely proper and helpful to discuss a clause in the round at the start of debate on the amendments to it, rather than afterwards. If the Committee chooses to do that—and I shall determine whether it has done so—I will be perfectly happy on the clear understanding that if a clause stand part debate takes place at the outset, there will not be a clause stand part debate afterwards. Hon. Members cannot have their cake and eat it.

Clause 1 - Animals to which the Act applies

Bill Wiggin: I beg to move amendment No. 102, in clause 1, page 1, line 3, leave out
', except subsections (4) and (5), ''animal means' 
and insert 
' ''animal'' means a vertebrate, a cephalopod or a crustacean.'.

Roger Gale: With this it will be convenient to discuss the following amendments: No. 1, in clause 1, page 1, line 3, after 'means', insert 'a cephalopod or'.
No. 2, in clause 1, page 1, line 3, after 'means', insert 
'a cephalopod or a decapod crustacean.'. 
No. 190, in clause 1, page 1, line 4, at end insert 
'and an invertebrate of the class Cephalapoda.'. 
No. 103, in clause 1, page 1, line 7, leave out subsections (3) to (5). 
No. 3, in clause 1, page 1, line 21, after 'Chordata', insert 
', ''cephalopod'' means any member of the class Cephalopoda'. 
No. 4, in clause 1, page 1, line 22, after 'Chordata', insert 
', ''decapod crustacean'' means any member of the order Decapoda'.

Bill Wiggin: I shall speak only to amendments Nos. 102 and 103. My initial feeling about the Bill was that it should include vertebrates and invertebrates, and so I tabled amendments to remove subsections (4) and (5). After Second Reading, when the Minister talked about slugs and snails, I modified my approach so that the Bill would include cephalopods and crustaceans.
Amendment No. 102 would ensure that where there was strong evidence to include more animals in the Bill, subject to clause 2 and provided that those animals were under the control of man, they would also be protected by it. The Bill would in its present form protect only vertebrates, other than man, and the inclusion of other animals is a later prospect. I accept  that there are provisions to extend the definition of ''animal'' to include invertebrates, but it is unbelievable that we may have to wait years for a decision on whether animals such as octopuses and crabs can feel pain and be protected under the Bill. 
The Government have not presented sufficient evidence to prove that such animals do not feel pain, and the EFRA Committee, the Born Free Foundation and the RSPCA have taken issue with that approach, and have made a strong case for their inclusion. Animal welfare legislation in Australia and New Zealand includes some crustaceans and cephalopods, and as the EFRA Committee has stated that a strong case has been made for the inclusion of octopuses, squids, cuttlefish, crabs, lobsters and crayfish, it would not be unreasonable to include them in the Bill. 
Those animals, moreover, can be kept in a man-made environment. Crabs, octopuses and squid can be kept in aquariums, and crabs and lobsters can be kept in homes and in display units. It is only right and logical that those creatures, which are often treated like fish, cats or dogs, should have the same legal protection. The common octopus, octopus vulgaris, already receives legal protection under the Animals (Scientific Procedures) Act 1986. It would be legally inconsistent not to include them in the Bill. The amendment would bring under the Bill's protection animals that we know should now be protected. 
It may amuse the Committee to know that I was once a zoo keeper at the aquarium at London zoo and our biggest problem was that the octopus kept escaping. They are extremely intelligent and capable creatures. When they escape, of course, they cannot find a suitable environment in which to live, and they die, so great security measures were taken to keep the octopus in its tank. On the basis of their ability to escape alone, they deserve protection. 
Amendment No. 103 is a probing amendment intended to uncover the Government's intentions for the future inclusion of more animals in the scope of the Bill. The Minister has time and again stated his desire to exclude certain animals, such as cephalopods, from the Bill, on the basis of scientific evidence. I appreciate that subsections (3), (4) and (5) make provision to extend the definition of ''animal'', but it is uncertain when that will happen. As that is not stated in the Bill, will the Minister tell us whether it will be done on an ad hoc basis or through an ongoing review? It may be that, under the Bill, the appropriate national authority will decide on a whim to extend the definition of the animals that will be protected, and, in view of that, I should be concerned about enacting subsections (3), (4) and (5) without reassurances from the Minister. What sort of research does he intend to use to support including relevant animals? 
Finally, if we are to base our definitions on scientific evidence—and we should—we should be consistent throughout the Bill. From time to time we get a bit emotional about certain types of animal, and take a scientific view of others. We should try to be consistent.

Norman Baker: The hon. Gentleman began by saying that he was speaking only to amendments—

Roger Gale: I am sorry to interrupt the hon. Gentleman, but in case hon. Members are wondering what is going on, it is always my custom to call hon. Members who have the lead name on amendments before calling members on both sides of the Committee, as one would normally expect.

Norman Baker: The hon. Gentleman said that he was speaking to amendments Nos. 102 and 103. Those amendments and amendment No. 104 go in the same direction for the reasons that he set out. There is a scientific case for giving these categories of animal the protection of the Bill. As the Minister knows, last month the scientific panel of animal health and welfare of the European Food Safety Authority concluded that the largest decapod crustaceans are complex in behaviour, have a pain system and considerable learning ability. According to the panel, cephalopods have a nervous system and a relatively complex brain similar to many vertebrates, sufficient in structure and function for them to experience pain. Therefore, there is clearly some evidence at least that they should be included in the Bill. For example, cephalopods can learn to avoid, and can experience, the pain and the distress of electric shocks. The hon. Gentleman referred to octopuses—I was told off by my hon. Friend the Member for Somerton and Frome (Mr. Heath) for not knowing my Greek from my Latin and saying ''octopi'' as the plural of octopus.
I suppose that the appropriate national authority will at a later stage consider the position of octopuses and others, which, if they are that intelligent, could escape across the border, as it were, so that they can be included within the terms of the proposal under the appropriate national authority. 
The cautionary principle should be applied in this case. If there is any doubt that these animals can suffer pain, they should be protected for humane reasons and included in the Bill, as that, after all, is what it is about. There is a body of scientific opinion—as far as I know, it has not been challenged—that suggests that these animals can suffer pain, and that means that we can tick the boxes that would mean their inclusion in the Bill. 
I fail to understand why the Government do not simply include these animals now rather than waiting for some other scientific evidence—I do not know what they require—that might be forthcoming at an unspecified later date. That is what I am not sure about. First, what is to be lost by including them now? Secondly, what further scientific evidence do the Government require for them to be included? 
I am worried that the unspecified later date may never occur. Legislation down the ages is littered with provisions that allow something to happen later on, which never actually occurs because the Government take their eye off the ball—they have other things to deal with, naturally—and there is no space in the legislative timetable. We have waited almost 100 years for an animal welfare Bill of this nature, and we should  not be projecting future dates for convincing evidence to be forthcoming.

Shona McIsaac: I welcome you to the Chair, Mr. Gale. I am sure you will take a great interest in the debate. As you mentioned your interests, I put it on the record that I am a patron of the Blue Cross animal hospital fundraising committee in Cleethorpes, which raised money to build a new animal hospital that is now up and running.
In respect of definitions, although I appreciate the intentions of the hon. Member for Leominster, I was a tad confused that he included all crustaceans in amendment No. 102. By my reckoning, there are about 50,000 species of crustaceans, which include woodlice and barnacles, for example. I have not had much correspondence from people asking for protection for woodlice, although we are all probably happy for them to scurry around under our plant pots. The amendment is possibly a little too wide. The hon. Gentleman's subsequent amendment would delete the phrase ''other than man''.

Bill Wiggin: I thought I opened my remarks by saying that I had amended the amendment because I wanted to include all invertebrates, and that is why subsection (5) remained. However, the hon. Lady is right in what she says.

Shona McIsaac: Yes, the original amendment inadvertently gave protection to humans.
I feel, however, that the Minister must consider what has been said about cephalopods. The hon. Member for Lewes was right to say that the Animals (Scientific Procedures) Act 1986 originally excluded cephalopods; they were added to the Act in the early 1990s, when it was realised that they needed protection. In fact, the Animal Procedures Committee recommends that such protection is extended to all octopus, squid and cuttlefish. The Home Office was advised that they should be offered protection, but the Bill is a little ambivalent about the matter. I seek the Minister's assurance that he will seriously consider the matter, so that the Bill is at least in line with the 1986 Act.

Roger Gale: Mr. Drew's name is attached to amendment No. 190, so I apologise for not calling him earlier.

David Drew: I readily accept your apology, Mr. Gale, and I welcome you to the Chair. I know that you might have wanted to participate in the debate but, given the independence of your position, you will have to listen while the rest of us pontificate.
I shall speak to amendment No. 190, but I do not want to delay the Committee. I hope that that will be the nature of all our debates in the next eight sittings. In line with my hon. Friend the Member for Cleethorpes (Shona McIsaac), I wish to tease out some information from the Minister—a theme that will be consistent in our debates as, by its very nature, it is an enabling Bill—about some of the other changes that might be made through secondary legislation. It will be a question of ''if and when'', and perhaps ''why not?''. 
Some of us believe that there is evidence that cephalopods are capable of suffering pain, and therefore that there is no reason why we should not afford them the same protection as vertebrates. There are some other issues, which I hope the Government will consider once the scientific evidence is available, that can be included via the secondary legislative route to give cephalopods and perhaps crustaceans similar protection. 
The Animals (Scientific Procedures) Act 1986 already includes cephalopods as a protected species, so I want to know why we cannot have some consistency in our legislation. That clearly would be a logical step. It would be good also to have some consistency with legislation in Scotland; I gather that a similar Bill in Scotland is likely to include non-vertebrates as being worthy of protection. Changes are taking place on the continent, too, and it would seem sensible that we have consistency of legislation. Even from my position—as my hon. Friend the Minister knows, I am not the most avowed pro-European—we still need consistency across national borders; otherwise, legislation could end up being undermined, because people would move animals for the most bizarre of reasons, but we would not have the enforcement of the law to protect them, given the various things they do that we would not want them to do. 
With that, I shall sit down, but I hope that the Minister will rehearse some of the arguments that he will no doubt have to rehearse again. If we hear them now, perhaps we shall not need to keep prompting in the same way.

Ben Bradshaw: I am grateful to the hon. Members who have tabled the amendments; it is useful to have a discussion on where we draw the line on the definition of ''animal'' for the purposes of the Bill.
Under the power in clause 1 (3), an invertebrate must be capable of experiencing pain or suffering before being included in the Bill. That criterion has been adopted to ensure consistency with the requirements for the commission of offences under the Bill, which entail the consideration of concepts of pain and suffering. At present, the Government do not consider that there is sufficient evidence of invertebrates' ability to experience pain or suffering to justify extending the Bill to cover them. 
I shall explain why. Current evidence on cephalopods is weak on two important points—first, on whether they possess a brain structure comparable to the human cerebral cortex. That is important because the cerebral cortex has an important role in conscious awareness in humans, other mammals and vertebrates, and conscious awareness is a pre-requisite for the experience of pain and suffering. Secondly, the evidence is weak on whether cephalopods' responses can be modified by analgesics, the substances that relieve pain. Those criteria are two of seven developed by the institute of medical ethics and, taken together, they can be used to determine whether an animal can experience pain. 
The hon. Member for Leominster raised a couple of examples of Governments including cephalopods in  legislation. He is right to say that they have done so in New Zealand and in some states of Australia, although crustaceans have not been included. I think I am right in saying that Norway has legislation, or is proposing it, to include crustaceans, but not cephalopods—a position that we find rather odd, as we think that the case for including cephalopods is slightly stronger than that for including crustaceans. We believe that the evidence on crustaceans is even weaker; they have what are called distributed nervous systems and no higher brain structure, so they are unlikely to be capable of conscious emotional processing. 
Currently, there is not sufficient evidence to include any invertebrates in this Bill. However, none of us knows what the scientific evidence will be in 20 or even two years' time. The Protection of Animals Act 1911 Act failed to do so, but this Bill aims to create flexibility to respond to changes in society's values or scientific knowledge. It would not be in keeping with that principle if we were unable easily to extend the definition of ''animal'' if the appropriate evidence became available.

Norman Baker: Before the Minister discusses the future of the definition, may I ask whether he has examined the evidence from the European Food Safety Authority's report of December 2005? On the specific issue of whether to include cephalopods, the report said that those animals can experience, and learn to avoid, pain and distress—for example, they can learn to avoid electric shocks. If they can decide to avoid electric shocks, they can clearly experience pain from them, and they seek to distance themselves. Does that not meet the Minister's first requirement?

Ben Bradshaw: I am about to come on to the very point that the hon. Gentleman raised in his initial remarks and has subsequently re-raised. He was right to draw the attention of Committee members to the ongoing review of directive 86/609 on the protection of animals used for experimental and other scientific purposes. It may help if I give a couple more details about that to Committee members who may not be as aware of the issue.
On 22 December last year, the European Food Safety Authority published the opinion of the animal health and welfare panel on four questions, including on some invertebrate species' sentience and capacity to feel pain, suffering or distress. That report is now with the Commission, which will draft proposals. Those will be consulted on and then go to the European Parliament for consideration. I assure the Committee that we shall closely monitor the review and ensure that it is considered as we examine the exclusion of invertebrates in future. 
The hon. Gentleman also mentioned the status of cephalopods under the Animal (Scientific Procedures) Act 1986, as did my hon. Friends the Members for Cleethorpes and for Stroud (Mr. Drew). To correct what my hon. Friend the Member for Stroud said, only one species of cephalopod is included in the  legislation, namely octopus vulgaris. He asked what the difference was between the Act and this Bill. One crucial difference is that it is more understandable to adopt a precautionary principle where animals are used for scientific procedures. In practice, octopus vulgaris is not currently used in scientific procedures in this country. 
It should also be remembered that the legislation proposes some quite serious criminal sanctions for people who break the law, so a burden of proof will be required. I think I am right in saying that no one has been prosecuted under the 1911 Act for inflicting suffering on fish, although they are included in the Act, because nobody believed that it was possible to satisfy the burden of proof. The Government framed the Bill so that it will be possible to satisfy the burden of proof when there is a prosecution. That is a different consideration from what one would want to bear in mind with the Animal (Scientific Procedures) Act, and the European legislation to which the hon. Member for Lewes referred earlier. 
A number of hon. Members also highlighted the EFRA Committee's recommendation based on that Committee's belief that a strong case had been made for inclusion. The Committee also acknowledged that 
''we have received insufficient evidence on which to base a final conclusion on this matter.''
That is where the Government stand. As I have tried to reassure hon. Members, we believe the Bill gives the flexibility for extension in future to cephalopods and crustaceans, and even others. We have gone some way already in extending the scope of the Bill by including fish and amphibians, bearing it in mind that until now it has been difficult to prove suffering in such cases before the courts. Subsection (3) contains the important power to amend or extend the range of animals to which the Bill applies. 
On that basis I urge that the amendment be withdrawn.

Bill Wiggin: The Minister made an elegant argument, rather as I suspected he would. I have no problem in withdrawing my own amendments, as there are drafting errors and I prefer amendment No. 190, which the hon. Member for Stroud tabled. However, the Bill's purpose should not be simply to create a legal framework, but to set an example to our society that neglecting one's animals or treating them cruelly is not acceptable, whether they be wood lice or higher beings. One can buy spiders and scorpions in pet shops, and those animals are excluded from the Bill.
I do not think that anyone really doubts that all creatures can feel pain, because pain is a protectionist sensation designed to stop beings from hurting themselves consistently. I do not think that there is any real doubt about that. However, we must set an example in how we consider the issue. I take the point about conscious awareness, but I do not think that the debate about analgesia is particularly relevant. We should look at the other recommendations of the Select Committee, which said that there should be a code of practice for the treatment of crabs and lobsters, particularly before they are eaten and while they are still alive. 
We are trying to achieve various things through the amendments. I would be much more content if the Minister would tell us his programme for evaluating invertebrates. The Bill has the flexibility to include them, but I think that we would all be content if we could do that in a more prescribed manner. I do not mind withdrawing my own amendments, but I think that amendment No. 190 has great merit. I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn.

Roger Gale: In case any hon. Members present have not served on Committees before, I shall explain the procedure, particularly in light of what the hon. Gentleman has just said. In any group of amendments, only the lead amendment is formally moved, so there is no question of withdrawing the others. Members will notice that the next group of amendments consists of one that relates to clause 1 and one— amendment No. 72—that relates to clause 10. If Mr. Wiggin or any other hon. Member wanted to move that grouped amendment, he would need to notify the Chair. It would be debated now, but moved formally when it was reached in the process of discussing the Bill.
I hope that that is clear. I do not wish hon. Members to miss opportunities, and if anybody wants to move an amendment that is not called as part of a group, they must notify the Chair—either myself or Mrs. Humble—and we will make a decision as to whether or not it is proper to move that amendment.

Bill Wiggin: I beg to move amendment No. 104, in clause 1, page 1, line 7, leave out 'The appropriate national authority' and insert 'The Secretary of State'.

Roger Gale: With this it will be convenient to discuss amendment No. 72, in clause 10, page 5, line 16, leave out from 'The' to 'thinks' in line 17 and insert
'Secretary of State may by regulation make such provision as he'.

Bill Wiggin: This is a more thorny subject. In moving the amendment, I seek to ensure that the law is applied consistently across England and Wales. Do we really want a situation to arise whereby the Secretary of State in England and the National Assembly for Wales create different regulations to fulfil the duties set out under subsection (3)(a), (b) and (c)? If the Bill is passed in its current form, we might see the Secretary of State and the National Assembly applying different definitions of what constitutes an animal. The Secretary of State and the Welsh Assembly could also duplicate each other's work when seeking to extend the definition of an animal under clause 1. Moreover, as presently drafted, subsection (3)(c) gives the Secretary of State and the National Assembly for Wales powers to amend subsection (2) differently. It is absurd that someone could be criminalised in Wales for an activity deemed criminal there but not in England. If an animal is deemed eligible on a scientific basis to be added to the definition of ''animal'' under subsection (3)(a), I fail to see the logic of the matter having to be determined separately in England and Wales.
We must also consider the impact of the legislation if it is not amended to ensure consistency. What will happen to properties that straddle the English and  Welsh border, many of which are in my constituency? Which regulations, codes and licensing regimes will they have to follow? The amendment would ensure that such uncertainties did not exist, and would guarantee legal consistency. 
Amendment No. 72, which is in the same vein, would prevent the possibility of different sets of laws being in place on each side of the border. As the provisions are designed to enable the creation of regulations to promote animal welfare, we must ask ourselves whether it would be wise to permit the creation of different sets of regulations. That would not only create problems of cost, but present the legal system with a formidable challenge. After regulations have been made, if they are broken it is possible that the offender will be prosecuted in the criminal courts. England and Wales share the same criminal law and criminal courts, and in the event of different regulations applying in each, our legal system will be sorely tested. For example, could a person who had violated a regulation specific to Wales be tried in a court in England, or for that matter in Scotland or Northern Ireland? 
Moreover, the Bill makes no mention of how regulations would affect the hundreds of cross-border farms, and which set of regulations the farmers would have to follow. Who would decide? Would the farmers get a choice, or would an arbitrary line be drawn across their land, with English regulations on one side and Welsh on the other? Unless the Bill is amended, we will run the risk of having different standards of animal welfare in England and Wales. Responsible legislators would not permit that to happen. 
The Bill does provide for good devolution. It gives a great deal of power to local authorities, pushing that power from the centre to the lowest possible level to allow local people to ensure local animal welfare standards. However, the aspect of devolution in question sets a dangerous problem for us as legislators. Although devolution can deliver genuine benefits, so that local people have a say over what happens to them and their animals, the provision is a bad example of the Government legislating on a principle without thinking about its consequences.

Ben Bradshaw: The hon. Gentleman was right to acknowledge that the Bill contains provisions applying equally to England and Wales: the main provisions—on unnecessary suffering, fighting, the duty of care and the sale of animals to under-16s, to name but a few—will apply to both countries. Those provisions, which form the basic law on animal welfare and cruelty, will be the same in England and Wales. DEFRA officials have worked carefully and closely with their counterparts in the Welsh Assembly on all aspects of the Bill, and we recognise the desirability of maintaining that uniformity between the two countries.
However, the hon. Gentleman is also right to point out that the Bill provides the National Assembly for Wales with powers to make its own secondary legislation and codes of practice or to extend the definition of an animal. Such provisions are likely in practice to be similar to those made in England, for the  reason, which he gave last week on Second Reading, that they will have a common scientific base. But he is right: it is not inevitable that Wales and England will always regulate identically. 
Amendment No. 104 would prevent the National Assembly for Wales from introducing regulations allowing it to extend the definition of an animal, and amendment No. 72 would prevent it from making any regulations that it thinks fit to promote welfare. The Government believe that the Bill's flexibility is sensible and would allow each Government to introduce regulations or codes that reflect their own priorities and which they believe are fit for purpose. That is consistent with, and in the essence of devolution, and I hope that we would all welcome it. 
The main examples that the hon. Gentleman gave would apply to farm animal welfare, which tends to be set at European level anyway, so there would be consistency across borders. However, I am sure that my officials will continue to work with officials in the Welsh Assembly Government on any future regulations and codes. On that basis, I urge him to withdraw the amendment.

Bill Wiggin: The Minister assures me that his officials have worked with the current Welsh Assembly Government. That is very good of them, but it does not tell us anything about what will happen in the future. I am interested to know what the Welsh Assembly Government officials involved in those discussions said they wanted to change in Wales that we would be unlikely to change in England. What will happen there that will be different from what happens here? I understand that if something is wrong, cruel and unfair to an animal and breaches the duty of care, it should be universally banned. I have grave reservations about the Minister's answers, but then he might put me right on what the Welsh Assembly Government want to change and the Committee could make a decision based on that.
The Minister is also wrong about cross-border farms. Of course the majority of animals in cross-border farms will be farm animals, but most farmers, particularly sheep farmers, have dogs, which do not constitute farm animals. They will be protected by the Bill, and their welfare is fundamental. If a sheep farmer has a holding on both sides of the border, the chances are that his dog will cross back and forth, just as the farmer does. I agree with the Minister on the advantages of devolution, but the argument does not cut much ice with me in that specific case, which is not the right use of devolutionary legislation. The Government have included the provision because they want to tick the box and say, ''We have given more powers to the Welsh Assembly Government.'' However, it is not the sort of power that I believe the Welsh Assembly Government are asking for, nor is it the sort of power that will strengthen the case for animal welfare throughout the UK. He has the opportunity to help me on the matter. I feel that the provision is well intentioned but erroneous.

Roger Gale: Does the Minister wish to respond?

Ben Bradshaw: I am happy to respond. I am advised by my officials that Welsh officials did not give any examples of the type that the hon. Gentleman mentioned, but they did make it clear that they wanted the power and the flexibility. For argument's sake, it is not inconceivable—although I should not consider it desirable—that the Welsh Assembly might reach a different view from those of the equivalent authorities in Scotland or England on the tail docking of dogs, which we shall perhaps discuss later today.

Bill Wiggin: If that is the case and a person takes their dog to have its tail docked in Wales, where it might not be illegal, when in England it is, how will it be possible to prosecute those sorts of cases? Every time a person is caught with a dog with a docked tail that person can say, ''I went to holiday in Wales, had a wonderful time and the dog was docked there.'' That is why I feel that that is an unnecessary part of the Bill.
If I were in the Welsh Assembly Government, I would not want the law to be particularly different. I would want the efforts of the whole of the United Kingdom law-making machine to produce the best possible animal welfare legislation, and would not necessarily want that law to be different across the border. It is therefore important that the Minister bears that point in mind. 
Given my previous job as shadow Secretary of State for Wales, I have strong feelings about devolution and I do not want those to cloud my feelings about this part of the Bill. However, because of my previous position, I understand why the Welsh Assembly Government would want flexibility. Who does not? I hope, however, that they would also want to deliver the best possible animal welfare legislation. So I will be more relaxed if the Minister can satisfy me on that.

Ben Bradshaw: I am not sure that I can satisfy the hon. Gentleman on the points that he raised. I simply reiterate that the provision satisfies the devolutionary settlement. We will come to tail docking later today or on Thursday. In the event of tail docking being banned for dogs, a prosecution would be brought against the person who had carried out the illegal procedure. So yes, there would be a territorial implication, but the same point could be made about tail-docking tourism to European countries where the procedure would still be allowed.
Bill Wiggin rose—

Roger Gale: Order. I suspect that there is going to be copious opportunity to discuss tail docking more specifically later in the Bill. I understand that the hon. Gentleman raised the issue to illustrate a point in connection with the amendment. That is perfectly in order, but a full debate on tail docking, which we will have in due course, is not. I am afraid that he will have to decide whether he wants to press the amendment to a Division or withdraw it.

Bill Wiggin: Having heard what the Minister said, I think that his hon. Friends will have the opportunity to persuade him that their passionate feelings about any issue covered in the Bill may be damaged by the devolutionary part. Due to my track record on  devolution, I am not going to press the amendment, in order to show that not only is my mind open, but that I am very fond of Wales, particularly the Conservative Members of the Welsh Assembly Government who do a tremendous job. I would hate people to think that my interest in this part of the Bill is about me and Wales instead of the great danger that people might be able to cross the border and escape some of the helpful parts of the Bill that I hope will be enacted. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Roger Gale: I am satisfied that the matters arising from clause 1 have been satisfactorily debated.
Clause 1 ordered to stand part of the Bill.

Clause 2 - ''Protected animal''

Bill Wiggin: I beg to move amendment No. 105, in clause 2, page 2, line 5, leave out 'or' and insert 'and'.

Roger Gale: With this it will be convenient to discuss the following amendments: No. 106, in clause 2, page 2, line 6, at end add—
'(2) In this section, ''temporary basis'' means an occasion when the care of and responsibility for a ''protected animal'' passes from one person, or persons, to another person, or persons, by mutual consent.'. 
No. 107, in clause 2, page 2, line 6, at end add— 
'(2) In this section, ''wild state'' includes animals which— 
(a) usually live independently from man in local habitats, 
(b) have been released from the control of man, 
(c) are no longer dependent on man to satisfy their welfare needs, 
(d) can come and go of their own accord, or 
(e) are ''wild animals'' that fulfil the criteria in this subsection and have been captured in the interests of animals control.'.

Bill Wiggin: This amendment has been suggested by some people and it is designed to avoid the application of offences under the Bill to animals that live in a wild state, but that are also of a kind that can be domesticated in Britain.
As the Bill is drafted, it is not clear whether such animals will be covered. A strong case can be made for their exclusion from the Bill because they can present a danger to human health that must be prevented. For example, a restaurant owner might wish to use rodenticides to prevent rats from entering the restaurant and endangering human health. However, because rats can be domesticated, the restaurant owner could be accused of committing an offence under clause 4(1), which would seem unreasonable given the circumstances of his actions. The amendment would clarify the situation because it marries the provision that an animal is not living ''in a wild state'', with the provision that it is 
''under the control of man''.
Moreover, the amendment would ensure that animals that live wild, despite their possible domestication, remain outside the scope of the Bill. I suspect that the amendment very much does what the Government want it to do, and I hope that my drafting is sufficient to ensure that they take it very seriously. 
Amendment No. 106 seeks to clarify the expression ''temporary basis'' in clause 2(b). It is simply not enough to expect the courts to interpret what constitutes a state of temporary basis without some guidance in the Bill. The amendment specifies the circumstances that can be defined in law as a temporary basis. That guidance would help the judiciary if the term was tested in the courts. 
The amendment places an emphasis on both people, or on both parties in the case of groups or organisations, to consent mutually to the change in control of the protected animal. It also makes it explicit that when control of an animal is handed over to another person on a temporary basis, that person becomes legally responsible for that animal. That would ensure that, in the event of a prosecution, it would be clearer to the court who was in control and responsible for an animal, and animals could not be placed under the control of a person or party without their knowing. 
Amendment No. 107 intends to clarify the meaning of ''wild state''. The Bill does not contain an interpretation section, so the courts will require guidance on what constitutes a wild state. Consequently, legal problems could arise when conservationists or gamekeepers release animals back into their natural habitats, or when wild caught animals are caught in snares. 
We do not want people who rear endangered species to be prosecuted for replenishing stocks of indigenous animals on the basis that, by releasing them, they are in effect violating their duty to ensure the welfare of the animal. Nor do we want gamekeepers to be prosecuted for releasing their game birds into the wild. When the Bill was first drafted, the EFRA Select Committee determined that gamekeepers should not continue to be responsible for taking reasonable steps to ensure the welfare of game birds once they have been released into the wild. 
The amendment also makes it clear that animals released into the wild must be released into an indigenous local habitat. In doing so, it would prevent keepers of non-native animals from releasing them from their control into English and Welsh habitats. Furthermore, specifying the definition of ''wild state'' in the Bill would prevent future regulations from defining ''wild state'' differently and would ensure legal consistency.

Norman Baker: I am not entirely convinced that amendments Nos. 105 and 107 are very helpful to our consideration of the Bill. They may be well intentioned, but they may have a deleterious and counter-productive consequence. Amendment No. 105, which would replace ''or'' with ''and'', would weaken the Bill by requiring every condition, rather than simply one of them, to be met. That raises the barrier against any action, and therefore reduces the status of a protective animal.
Nor is it clear what would happen if an animal had ceased to be under the control of man and was living wild. How would something that had escaped from a circus, for example, be dealt with?

Shona McIsaac: Such as the four lions in Grimsby.

Norman Baker: I am therefore not in favour of amendment No. 105.

Bill Wiggin: We heard the example of the lions in Grimsby, but it is very important that people do not release lions in Grimsby. That is what the amendment seeks to prevent.

Norman Baker: Animals are very intelligent and can escape—the hon. Gentleman told us about the octopuses—and we must take that into account.
Amendment No. 106 makes a sensible point. It is fair to seek clarification of what ''temporary basis'' means, and I hope that the Minister will clarify the term for the record this morning. 
I am also unhappy with amendment No. 107. My assumption—perhaps the Minister will clarify this point—is that a game bird that has been kept in a cage is a protected animal. That is what he told me on Second Reading last week. Presumably it is no longer a protected animal when it is released. That is very clear, and does not require further changes to legislation. The amendment would muddy the waters. Under its proposed new clause 2(d), animals 
''can come and go of their own accord''.
How does that deal with pets such as cats that wander in and out of cat flaps? My cats certainly come and go of their own accord, but I want them to be protected, so I am afraid that I cannot support the hon. Gentleman's amendments.

Shona McIsaac: As has been said, I agree that the insertion of the word ''and'' instead of ''or'' means that to be protected an animal must satisfy the criteria set out in all three paragraphs, rather than just one; that would reduce the number of animals that would be protected, so the amendment is not suitable for inclusion in the Bill.
As to the purpose of amendment No. 106, clarifying the term ''temporary basis'' might be helpful. Perhaps the Minister could consider that. However, the attempt in amendment No. 107 to redefine the term ''wild state'' does not work, as the hon. Member for Lewes said. When I read the definition, I thought of the three cats that I cannot say I owned, because they were fairly independent beasts—sadly they are no longer with us—and that came and went of their own accord. Nobody could have said that they were under my control. There is confusion in that attempt to redefine the term ''wild state'' and we should not support it.

Bill Wiggin: I take the point, and there is a concern about animals such as cats, which come and go. If the cat had been hit by a car, or required a vet, I think that the hon. Lady would have paid for it; she would have taken responsibility for her animals. The fact that she did not seek to constrain them does not mean that she was not responsible for them. We are trying, I think, to define an animal for which she is responsible, rather than one for which she is not. If she found a rat on her doorstep in a very unwell condition, she would not necessarily react by paying a vet's bill for it, whereas she would have done that for one of the cats in the same condition, because it was her cat. That is what we need to identify: whether the animal is wild or not.

Shona McIsaac: I take the hon. Gentleman's point, although in my time I have taken a diverse range of species to the vet, after finding them injured. I do not want to go down that route, however. I feel that the amendment will reduce protection. It is too broad in meaning.
To return to amendment No. 105, it would include animals that escaped, rather than being released, from circuses, and that brings me to the four lions that escaped from Chipperfield's circus and roamed around Grimsby. I know that the hon. Gentleman is incredulous at that story, but my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith) will confirm that it happened. When we reach the circus amendments, I shall probably reveal the whole story of what happened there. Amendment No. 105 would have had an interesting effect in the case of the lions wandering around Grimsby.

Paddy Tipping: I want to pursue a matter that the hon. Member for Lewes has raised and that was also raised on Second Reading, which has real relevance to the shooting industry: the breeding of game birds, such as pheasants, in cages. We may have an opportunity later to discuss intensive breeding of such birds, but the question of the release of those birds into the wild is important. Birds are cared for by gamekeepers and put into release pens, as the hon. Gentleman said, and at some point they are released into the wild. However, even when they are in the wild, gamekeepers have some responsibility for them in the early days. Some supplementary feeding takes place, for example. The Minister discussed that point on Second Reading. I hope that he will clarify matters; if the Government are in favour of shooting, it is important that gamekeepers should know how they can act properly without the risk of prosecution.

Ben Bradshaw: I beg your indulgence, Mr. Gale, and that of the Committee, if I take a while to go through some of the issues. It is right to do so, not least because this is one area of the Bill where there is scope for interpretation by the courts. Our intentions in clause 2 are explained quite clearly in the explanatory notes. Under the clause, an animal will be ''protected'' by the cruelty provisions of the Bill if it is of a kind that is commonly domesticated in the British Islands, or it is under the control of man or it is not living in the wild.
As a number of hon. Members have already commented, amendment No. 105 would severely limit the Bill's application. The hon. Gentleman may not have appreciated that as a matter of drafting style it would have the effect of making each of these three conditions a prerequisite. So for the Bill to apply, the animal would have to be of a species commonly domesticated in the British Islands, and under the control of man, and not be living in a wild state. I suspect that that was not his intention. I believe his aim was that the Bill should cover species that are commonly domesticated, and species that are not commonly domesticated but that are under the control of man and not living in a wild state. 
Again, I have to disagree with what I believe are the hon. Gentleman's intentions on this point. The third condition in clause 2 is intended explicitly to address animals which are not under the control of man, but which are not living in a wild state either. Several examples of this were given in the explanatory notes. If an animal from a non-domesticated species escapes from a zoo or a circus, it cannot be said to be living in a wild state; and it would be unfortunate if by virtue of its having escaped the control of man, it ceased to be offered the Bill's protection. 
The underlying logic of this whole clause is that, if a person has taken an animal, rendered it under his control, and thereby rendered it incapable of fending for itself in the wild, the animal should be offered the protection of this Bill. That applies whether the animal itself has been taken under man's control, or whether the particular kind of animal has been collectively rendered dependent on man. If any of those animals regain their wild state, we can legitimately say that they are beyond the scope of the Bill. Until that point, however, we believe that a person who inflicts unnecessary suffering on domestic animals or animals that have been under the control of man and so are unlikely to be able to fend for themselves should be guilty of an offence. I hope hon. Members will agree. 
Let me give a couple of examples. If a fox is released from a sanctuary and has only briefly been in the custody of man, perhaps for a day or two, then it is likely to be considered to be in a wild state as soon as it is re-released. [Interruption.] I will raise my voice for a while. It will probably not have become dependent on the sanctuary and those who release it should not be accountable in law for what happens to it. [Interruption.]

Roger Gale: If the Minister is able to proceed, he should do so. If the noise becomes too intrusive, I may have to suspend the Committee.

Ben Bradshaw: I think that it is going down again. In case hon. Members did not hear what I said over that giant kettle, I repeat: if a fox is released from a sanctuary and has only briefly been in the custody of man it is likely to be considered to be in a wild state as soon as it is re-released. It will probably not have become dependent on the sanctuary and those who release it should not be accountable in law for what happens to it. But if a fox has been in the custody of a sanctuary for many months it may not be capable of looking after itself in the wild. In that case it will need a rehabilitation programme that gradually re-accustoms it to the wild.
For the majority of that programme it should still benefit from the protection of this clause in the Bill. So if the sanctuary just casts it out and it suffers unnecessarily then an offence may have been committed. We accept that in a narrow category of cases it may be difficult to determine at what stage exactly it can be considered to be in a wild state. But if there were any reasonable doubt about whether the animal was protected, a defendant could not be convicted of this offence, given the usual criminal burden of proof. We would expect a court to conclude that, by the stage an animal was roaming widely and  obtaining its essential feed itself, it would be considered to be in a wild state.

Shona McIsaac: I am listening carefully. Can the Minister tell us what is the status of the wild boar that escaped in the west country?

Ben Bradshaw: If they were wild boar that had escaped—

Shona McIsaac: They escaped from a farm; attempts have been made to round them up, but they seem somewhat happier snuffling around in the woodland.

Ben Bradshaw: Without pre-empting what a court might decide, my instinct would be that if those wild boar had not been actively released but had escaped and were living happily in the wild, they would be considered to be living in a wild state. That is my guess.

Bill Wiggin: I know that the Minister means well, but he is on dangerous ground. We all know that animals that are not indigenous should not be released into the wild. The wild boar is a European animal not normally present in Britain, but it quickly adapts and becomes wild. However, it poses a huge risk to human health—no one wants to be run over by a wild boar—and it provides a vector for the transmission of pig diseases, which I know would worry the Minister.
It is important that we do not allow the release of animals into the wild, willy-nilly, no matter what the consequences might be. The Minister may want to tell us more later, or even write to the Committee; it might get him out of jail on the question.

Ben Bradshaw: I am not sure that I need to go to jail just yet. The example given by my hon. Friend was about escaped animals. The hon. Gentleman spoke about release, which is different.
The hon. Gentleman was right about the release of non-indigenous species—he has answered his own question—because it is illegal to do so without a licence under the Wildlife and Countryside Act 1981. As for the release of animals into the wild, we will be producing codes detailing best practice under the rehabilitation programme that I referred earlier. Those codes will help people to judge where the boundary will lie. 
I was talking about a fox roaming widely. The fox living in the wild would be similar to a wild bird that came every day to the bird table. One could argue that feeding the bird had helped it through the winter, but the bird has always been in a wild state. For the avoidance of doubt, a wild bird would not be protected even if feeding it from the bird table had helped it to survive the cold winter months. 
The hon. Member for Lewes raised the question of game birds, as did my hon. Friend the Member for Sherwood (Paddy Tipping). The matter was raised also on Second Reading. Game birds are clearly in the custody of man when in a rearing pen. They are introduced to the wild by placing them in a release pen. Methods vary, but in many cases the birds are free to fly the moment they are put in the pen. Some birds may initially spend long periods in the pen, and even after they have started to roam during the day  they are encouraged by the keepers to return at night. That ensures a guaranteed supply of food and water; it also ensures that predators cannot reach them. 
We would argue that they are clearly not in a wild state at that stage. However, once they are free to roam at will for 24 hours a day and are no longer encouraged by the keeper to return to the release pen each night, they can be considered to be in a wild state and no longer a protected animal. We think that we have struck the right balance. A keeper should be held accountable in the early stages for ensuring that the birds do not suffer unnecessarily. However, once he is trying to ensure released pheasants do not stray beyond the boundaries of his shoot by providing food at dispersed sites round his land, the birds are in a comparable position to pheasants on the same land that have never been in the custody of man. I hope that I have clarified the position on the rearing of pheasants for my hon. Friend. 
I shall deal next with amendment No. 107. We should not try to define ''wild state'' in the Bill. It is rather like the notion of ''control'' in clause 2. The term is widely understood, and in the overwhelming majority of cases it will be clear to anyone whether an animal is wild. I agree that animals that are in transition from relatively long periods of being in the custody of man to the wild state raise certain issues, but I firmly believe that it is preferable to trust the courts to exercise their discretion on the matter than to pin down an exact definition in the Bill. There is a risk that situations that members of the Committee have not contemplated, but which we would want to catch, could be omitted, and vice versa. 
In respect of the amendment, I assume that the hon. Member for Leominster means ''wild state'' to include animals that meet the first four criteria or the last criterion. The drafting would need to be amended to achieve that aim. 
Amendment No. 106 attempts to define the idea of temporary control. The notion of control, especially temporary control, has been introduced into the Bill to replace the notion of captive animal, which was used in an equivalent context in the Protection of Animals Act 1911. The courts have interpreted the phrase ''captive animal'' narrowly, so that mere temporary inability to get away from a human does not make it captive. They have held that a further act of dominion over the animal is required to make it captive. 
The Bill will widen the scope of the 1911 Act. Under the definition in clause 2 of a protected animal as one temporarily under the control of man, capturing an animal would bring it under a person's control. For example, if a person catches a wild bird and holds it still so that it cannot get away, it is temporarily under his or her control under the Bill but it might not have been considered captive under the 1911 Act. 
The hon. Gentleman also used the example of animals caught in a trap. The Bill widens the scope of the legislation to mean that an animal that is caught in a trap will come within the scope of the Bill, and rightly so. People expect animals that are caught in  traps to be treated or dispatched humanely. In those circumstances, if unnecessary suffering is inflicted on an animal we want the person who inflicts it to be guilty of an offence, as I hope hon. Members agree. 
The amendment would exclude a wild animal that temporarily came within the control of man, as it would be a precondition that it had been in the control of another person previously and that would be a backward step from the 1911 Act. I therefore urge the hon. Gentleman to ask leave to withdraw the amendment.

Bill Wiggin: The Minister made several points. To judge from his closing comments, we are not too far apart on the matter. Failure to recapture animals is tantamount to release, therefore I think that he is wrong in respect of the wild boar. He said that he would issue a code of conduct on the release of animals back into the wild, which is very helpful, and people will be grateful for that. I hope that the code will be issued soon.
We have not completely covered the poisoning of rats, but I think that common sense will prevail.

Ben Bradshaw: I apologise for not responding to the hon. Gentleman's point about rats. There is a distinction between a type and a species: wild rats are wild, therefore they are not covered by the Bill. Domesticated rats are a different type because they have generally been bred in captivity for many generations. I hope that will help the hon. Gentleman in terms of the definition and the distinction between different types of animals rather than species.

Bill Wiggin: I am grateful for that intervention. When the courts have to decide whether a rat or any other animal is wild they can look at the Minister's comments, which were very helpful. The colour of the rat alone is presumably not enough to decide whether it is wild, but given his assurance about the code of conduct the Minister has satisfied me that he has given much thought to the problems with the definitions which I identified, and his comments are on the record. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Clause 2 ordered to stand part of the Bill.

Clause 3 - Responsibility for animals

Bill Wiggin: I beg to move amendment No. 108, in clause 3, page 2, line 9, leave out 'responsible' and insert 'who has accepted responsibility'.

Roger Gale: With this it will be convenient to discuss the following amendments:
No. 109, in clause 3, page 2, line 9, after 'animal', insert 
'(and any offspring that animal may subsequently have)'. 
No. 110, in clause 3, page 2, line 13, at end insert 
'and any offspring that that animal may produce'. 
No. 111, in clause 3, page 2, line 13, at end insert 
', except when responsibility for an animal has been passed onto another person on a temporary basis.'. 
No. 92, in clause 3, page 2, line 16, at end add— 
'(5) For the purposes of this Act, in the event of a person unlawfully taking possession of an animal, he will be treated as being responsible for that animal on a temporary basis, until such time as that the animal is recovered by its lawful owner.'. 
No. 96, in clause 4, page 2, line 26, at end insert 
'as the owner or on a temporary basis,'.

Bill Wiggin: We touched on the passing over of responsibility, and the amendment would clarify the situation regarding animals that may enter into someone's care inadvertently by making it explicit in the Bill that a person has to make a conscious choice to accept responsibility for an animal.
As drafted, the Bill does not refer to the responsibility assigned to a person if an animal enters their land or is born on to it without their knowledge or permission. Many people have expressed concern about the possibility that a person would automatically become responsible for an animal for which they might not want responsibility, and would have all the welfare duties conferred on them under the Bill. That could come about because, under common law, a person acquires a qualified property right on any wild-born animal on his land, and under clause 3(3), the owner of an animal will always be responsible for it. The amendment would ensure that the landowner would not be obliged to care for an animal that could be deemed to have fallen inadvertently under their ownership, if they chose not to. 
Amendment No. 190 would guarantee that the protection under the Bill would cover the offspring of a mother animal that would be covered by the Bill. The Bill makes no provision for newborns. That could leave a loophole. For example, if an owner is responsible for a pregnant animal, under clause 1(2) they are not responsible for the foetus. However, there are no provisions detailing the right of the animal once it is born, and who is responsible for it. We have all heard of unwanted puppies or kittens being put into bags and thrown into rivers, and other horrible stories. The Bill will protect animals by holding the owner of the parent animal to account, as they would be statutorily responsible for the offspring. 
Amendment No. 111 would clarify the contradiction in the clause. Clause 3(1) refers to a person being responsible for an animal, 
''whether on a permanent or temporary basis.''
That potentially conflicts with clause 3(3), which states: 
''For the purposes of this Act, a person who owns an animal shall always be regarded as being a person who is responsible for it.''
It is unclear whether, when control of an animal is passed temporarily to another person, that person becomes the animal's owner, with the ownership responsibilities conferred by the Bill. 
If that contradiction is not cleared up, a person who has been left in control of an animal on a temporary basis and who has not ensured its welfare, may not always be prosecuted, as they will not be the animal's owner and will not therefore be responsible for it  under clause 3(3). Moreover, the owner could be prosecuted when he or she had done no direct harm to the animal, and had only passed over control of it in good faith. The amendment would ensure that when control of an animal is given to another person, that person will have legal responsibility under the Bill, despite not having ownership of the animal. 
Amendment No. 92 would close a loophole in the Bill with regard to animal theft. The Bill makes no provision for identifying the persons responsible for an animal once it has been stolen. Under existing theft laws, the theft of pets is treated in a manner not too dissimilar from the way in which the theft of household property such as televisions is handled. It is important that, in those circumstances, the Bill should still apply to protect animals. About one in four pet owners worries about the possibility of theft, and we should legislate to ensure that those responsible for the theft are also responsible for the welfare of the animals that they choose to steal. At what would be a stressful time for a pet owner, it might be some comfort to know that at least the animal would be protected, or that the thief could be prosecuted under the Bill. By making thieves responsible for the animals that they steal, the amendment will make it easier to prosecute them if they harm or damage the animal once they have unlawfully taken possession of it. 
Amendment No. 96 will guarantee that a person who is in control of an animal on a temporary basis can be prosecuted for violating the provisions of the Bill and that the animal's owner, who may not be in control of the animal at that time, will not be prosecuted. Clause 3(3) states that the owner of an animal 
''shall always be regarded as being a person who is responsible for it.''
That makes it legally possible for owners to be prosecuted for not preventing harm to their animals, even if they were not in control of the animal at the time of the offence. We know that there are circumstances in which responsibility can be conferred on someone else on a temporary basis, and that it would not be right for the owner to be prosecuted if an offence were committed in such circumstances. The amendment would ensure that those responsible for an offence are the ones who are prosecuted for it so as not to waste precious court time and resources.

Justine Greening: I very much support the points that my hon. Friend has just made, particularly about amendment No. 92, which would close a loophole at a time when an animal may be most at risk. I accept that there might not have been so many regular cases of dogs being kidnapped and pets being taken out of their environment by other people in the past, but unfortunately it is becoming increasingly common. Only before Christmas, there was an incident in the local shopping centre in Wandsworth in which a family pet dog that had been tethered was taken. Fortunately, it was returned in a good state several days later. It would be worth closing that loophole because of such a risk.

Ben Bradshaw: I note that amendment No. 108 misconstrues the purposes of subsection (1), which has been included in clause 3 to clarify the fact that responsibility does not necessarily require a permanent relationship between man and animal. One might be considered responsible for an animal even if one's relationship with it is only temporary. That is obviously a necessary clarification. If a vet takes in an animal overnight for treatment or if a boarding establishment takes in an animal for care, their relationship with the animal is certainly only temporary, but I am sure that hon. Members will agree that a vet or a boarding establishment should be considered responsible for meeting the animal's welfare needs while the animal is with them.
The purpose of amendment No. 108 is to change the scope of responsibility quite fundamentally. Its effect would be to introduce a subjective element into the idea of responsibility. Responsibility can be said to arise only where the person actually accepts it. That would be a significant change to the current position under the Bill in which a person can be considered to have responsibility for an animal even if he did not actually accept it, because any reasonable person would consider that he had responsibility. 
For example, the person who has responsibility for a child who owns an animal is to be considered responsible for the animal. That responsible adult may not actually have accepted responsibility for that animal, although I hope that that will become a less prevalent problem once the effects of clause 9 and the ban on under-16s acquiring animals kick in. Any reasonable person would, however, ultimately consider themselves responsible for the welfare of their child's animal. 
The Bill should reflect that position. If it did not, it would be a defence against the welfare offence or any of the offences that might be created in future regulations simply to say, ''I did not accept responsibility for it.'' That would not be progress. The Bill would have taken a wrong turn if we involved prosecutors in lengthy arguments as they tried to prove that each defendant actually subjectively accepted responsibility of the animal in question. 
Amendments Nos. 109 and 110 would ensure that a person who is responsible for an animal would also always be responsible for its offspring. I agree that that should often be the case, but it would not always be appropriate. Under the Bill, such a person is already responsible for that offspring in all cases in which they should be considered responsible for it. Someone who is responsible for an animal that gives birth to offspring would often be responsible for that offspring either because they own it or because they would be in charge of it. In cases in which it is appropriate, therefore, the offspring is already an animal for which the person is responsible, and there is no need to include such a provision specifically. 
In most instances, therefore, amendments Nos. 109 and 110 would not add anything to what the Bill already provides for. On the other hand, they risk giving responsibility where none would be appropriate because of the possibly very wide use of the word ''subsequently''. It would not make sense, for example,  to be responsible for the offspring of an animal that one had already sold or given away. 
The same difficulty applies equally to both amendments. The owner cannot always be responsible for offspring that may be produced at any time in the future. The Government believe that the question of whether someone should be considered to be responsible for an animal should be decided separately for each animal. On that basis, the Bill allows for the owner of an animal also to be considered responsible for its offspring, where appropriate, but it does not prescribe that they will necessarily always be responsible. 
I shall explain why amendments Nos. 111 and 92 are unnecessary by clarifying how clause 3 operates. Subsection (3) explains that owning an animal will confer responsibility on the owner. That should not be misunderstood to mean that if one does not own an animal, one is not responsible for it. The other circumstances outlined in clause 3 are not intended to be an exhaustive list, but to highlight the situations that ought always to be considered to be included within an understanding of ''responsibility''. 
It may be that the obligations of an owner who only has temporary responsibility for an animal are less onerous than someone with a longer-term responsibility. However, owners who own animals only on a short-term basis should nevertheless be responsible for those animals while ownership lies with them.

Norman Baker: The confusion is about whether responsibility should rest with an owner if the owner is not in a position to discharge that responsibility—for example, if the animal has been stolen.

Ben Bradshaw: I will come on to that point in a moment.
An owner who temporarily shares responsibility for the animal with another—for example, the owner of a boarding establishment—should be able to rely on the responsibility of the boarding kennel owner to secure his animal's needs, as long as he has taken all reasonable steps to ensure that he is passing on responsibility to a suitable person. Further, clause 3(1) specifies that it is possible to be responsible for an animal on a temporary basis. Therefore, to answer the point raised by the hon. Gentleman, if someone were to take possession of an animal unlawfully, they would in most cases be considered to be responsible for it. They would, after all, almost certainly be ''in charge'' of it on a temporary basis.

Norman Baker: That person might be in charge or in control, but they would not own the animal. Clause 3(3) states that
''a person who owns an animal shall always be regarded as being a person who is responsible for it.''
It is perfectly possible to own an animal and not be able to responsible for it.

Ben Bradshaw: I am about to come on to that very point. The owner of an animal would also be considered to be responsible for it even if it had been stolen. However, it is important to remember that the  person responsible for an animal has to take only such steps as are reasonable in the circumstances to ensure their animal's welfare. The obligations which that responsibility put on the owner whose animal had been stolen would, in most cases, be either extremely limited or nonexistent.

Philip Hollobone: As it is the first occasion on which I have spoken, I declare my interest as a member of the Countryside Alliance. What would happen in the case of an animal knocked over by a car? If the pet was not under the immediate control of its owner, but it was injured by a road vehicle and was lying in pain on the side of the road, who would be responsible for its welfare?

Ben Bradshaw: The owner would have responsibility for it. However, as I have just pointed out, it would be expected only that the owner had taken reasonable care to ensure the animal's welfare. I cannot imagine a situation where a court would convict somebody for allowing their animal to be run over. However, if the animal was unable to move, it would be considered to be temporarily in the care of the person who had run it over. That person would be expected either to dispatch it humanely or to call a vet or the police to the scene to ensure that its welfare needs were met.

Norman Baker: To follow the Minister's point, the clarification he has given is reasonable. If an owner cannot be in a position to discharge his responsibility, that is a defence, but it is not stated in the Bill. Would it not be wise to have that qualification expressed in the clause?

Ben Bradshaw: We believe that the wording that says that the owner of the animal shall take steps that are reasonable in the circumstances to ensure that animal's welfare would cover the issues to which the hon. Gentleman has just referred.

Bill Wiggin: That is not on the face of the Bill.

Ben Bradshaw: It is in clause 8.
Turning to amendment No. 96, clause 4(2) will make it an offence for someone who is responsible for an animal to allow another person to cause it unnecessary suffering. This will mean that if, for example, an animal owner or other person responsible for the animal watches another person beat his animal, he too can be convicted of causing unnecessary suffering. This will apply only to someone who is responsible for the animal to which they permit someone else to cause unnecessary suffering. If the amendment is intended to clarify the meaning of ''responsibility'', it is unnecessary.

Bill Wiggin: The Minister is doing as good a job as can be expected. The example that sprang immediately to my mind is this: if a person sends his dog away for training and the trainer beats that dog—perhaps he is a bad trainer, or perhaps he did not do his job properly—the dog owner would be responsible according to the Minister, would he not?

Ben Bradshaw: Not if that person had taken reasonable measures to ensure that the animal's welfare needs had been met. If they had satisfied  themselves that the dog was going to a bona fide trainer, the trainer would be responsible for the suffering. If the owner was present when it happened and was watching, however, that would be a different matter.
The concept of responsibility is already clarified by clause 3 and does not need further clarification. Someone who owns an animal or is temporarily responsible for it will already be classified as responsible for it for the purposes of clause 4(2). If the intention of amendment No. 96 is to restrict the definition of ''responsibility'' for the purposes of clause 4(2), it is misguided. 
A person can be considered responsible for an animal in more ways than by owning it or having temporary responsibility for it. For example, while a racehorse is in a trainer's stables and the trainer is in charge of it, the trainer would be responsible for the horse. However, that would not necessarily be temporary, nor would the trainer necessarily own the horse. Amendment No. 96 means that the trainer could not commit an offence of permitting someone else to cause the horse unnecessary suffering. I do not think that that is an acceptable outcome. On that basis, I urge the hon. Member for Leominster to withdraw the amendment.

Bill Wiggin: I am not sure that I completely understood that. If the racehorse is in a trainer's stable and the jockey beats it, the jockey is responsible to the racehorse trainer but not to the owner. The jockey—''jockey'' might be the wrong word, as it could be somebody else—would therefore be liable. Is that right?

Ben Bradshaw: Yes.

Bill Wiggin: I am grateful to the Minister for clarifying that. Funnily enough, racehorses were one of the examples that I was thinking about in which ownership of the offspring is not necessarily the same as ownership of the mare or parent animal.
The Minister's point about clause 8 is important. As I said in my opening comments, my amendments are designed to clarify matters for the good people who look after their animals, not just the people who commit offences. We do not really want the draft legislation to be tested in court; we want people to understand what their obligations are when they read it. My amendments set out to clarify what will happen when people go away and it is not so clear-cut that one can say, ''Look, the animal is clearly in your care—it's your animal, you're responsible for it.'' 
The example that I am dying to bring in is my own case. Every week I come to the House to look after the welfare of my constituents, while my neighbour looks after my chickens. He is effectively responsible for them when I am not there, but I own them.

Shona McIsaac: What about the cows?

Bill Wiggin: The cows are different. They are owned partly by me and partly by Mrs. Spreckley. She looks after them in the winter when I am not there.
The point is that the duty of care and the duty of ownership should go hand in hand. Problems arise when they do not, and my amendments sought to keep  them together. I am content that the Minister has said enough to clarify that we need to consider clause 8 for the real details of the responsibility that should go hand in hand with ownership. On that basis, I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn. 
Clause 3 ordered to stand part of the Bill.

Clause 4 - Unnecessary suffering

Norman Baker: I beg to move amendment No. 5, in clause 4, page 2, line 20, after 'suffer', insert 'whether physically or mentally'.

Roger Gale: With this it will be convenient to discuss the following amendments: No. 97, in clause 4, page 3, line 4, at end insert—
'(3A) In this section, the term ''suffering'' includes both mental and physical suffering or cruelty.'. 
No. 161, in clause 4, page 3, line 6, at end insert— 
'(5) In this section, ''suffering'' includes mental and physical suffering, and ''suffer'' is to be construed accordingly.'.

Norman Baker: We now come to the clause relating to unnecessary suffering, which the Minister will recognise as a long-standing concept in animal welfare legislation. It features in the seminal Protection of Animals Act 1911, which has served us pretty well for almost a century.
I hope that it is not in dispute that an animal can be caused not only physical but mental suffering. For example, somebody who regularly shouts at their dog might cause the dog distress, but I am not confident that clause 8 would necessarily cover that in terms of the so-called five freedoms. We must identify the possibility of unnecessary suffering that is not of a physical nature. 
The 1911 Act expressly included a provision for certain types of mental suffering. That was almost 100 years ago, and it would be prudent, unless the Minister can convince me otherwise, to continue with some reference to that in the Bill. Yet that provision appears to have been deleted. On the face of it, the provisions in the Bill could be regarded as weaker than those in the 1911 Act. 
The Minister might argue that by not specifying the meaning of ''unnecessary suffering'' the Bill allows the court to reach a wider conclusion about the meaning, and that to specify types of mental suffering would be to eliminate those that had not been considered. I am arguing his case for him, but that would be the case only if a list of types of mental suffering were to be included in the Bill. However, that objection does not apply if merely the words ''mental suffering'' are to be included, because that would be sufficiently wide to allow the provisions to catch anything that had not been thought of. However, at least it would refer to mental suffering, which would therefore allow the courts to assume that the Bill has not been weakened from its 1911 origins. I am not clear on how many prosecutions are actually brought for non-physical  unnecessary suffering under the current legislation; perhaps the Minister can tell us. 
We need to ensure that the Bill, which is, by and large, a helpful move forward for animal welfare, does not start with an unnecessary and unwelcome loophole that can be exploited. Including the phrase ''whether physically or mentally'' would help to ensure that there is a belt-and-braces approach to the Bill without necessarily limiting the prosecutions that could be brought under the terms of the Bill.

Bill Wiggin: The Committee will find that my amendments on this issue are similar to those of the hon. Gentleman, and his summary about a belt-and-braces approach was helpful.
Amendment No. 97 seeks to ensure that mental suffering is included in the Bill. It is easy to provide evidence of physical suffering to the court in cases in which the scars can be seen. However, the judiciary should also be able to consider the possibility of mental suffering. The 1911 Act covered certain types of mental suffering, and the RSPCA has expressed concerns about the absence of those provisions in the draft Bill. The amendment would help the court to decide whether harm had come to an abandoned animal, if it determined that, in the circumstances, the abandonment had caused the animal to suffer mental suffering. 
Amendment No. 161 seeks to ensure that mental suffering is included in the Bill; we have been lobbied about this by various groups. Paragraph 18 of the explanatory notes mentions that the suffering offence covers physical and mental suffering, but I think that that should be stated explicitly on the face of the Bill. The code for the welfare of meat chickens and breeding chickens states that as one of the five freedoms, chickens should have 
''Freedom from Fear and Distress—by ensuring conditions and treatments to avoid mental suffering.''
If mental suffering can be stated explicitly in a code for chickens, I see no reason why it cannot be mentioned on the face of the Bill. 
I am confident that animals can be victims of mental suffering and I would therefore like to have that point covered. I suspect that the hon. Member for Stroud, who kindly added his name to the amendment, might feel the same. I will allow him to return to his seat in case he wants to speak to the amendment.

David Drew: I was just trying to give my apologies for being about to go to an Adjournment debate. I am waiting for some clarity on the wording from the Minister. It is linked closely to what I want to say about amendment No. 191, so if the hon. Gentleman will allow me, I will reserve my remarks for that amendment.

Roger Gale: I apologise to the hon. Gentleman. He kindly informed me that, as is unfortunately so often the case in this building, he has to be in two places at once. I wanted to make sure that he had his say in case he has to go next door.

Paddy Tipping: I shall be here later, and will pursue the issues in amendment No. 191 if my hon. Friend would like to brief me before then. 
I want to probe the Minister on amendment No. 5, and the matter of mental suffering. The Minister and his officials have received a lot of correspondence and lobbying on the proposal. The 1911 Act is clear that mental suffering should be included but it is not in the Bill. The Minister will argue that the Bill, as drafted, deals with mental suffering and my plea is that he states the case clearly. There may be an opportunity to consider the matter later in clause 56, which is entitled ''General interpretation''. Depending on what the Minister tells us this afternoon, an amendment might be tabled to that clause on what constitutes suffering. It would be easy to put together an amendment defining suffering as both physical and mental suffering. 
This is an important matter of process and the RSPCA and others want a good discussion on it; it was debated at length on Second Reading. I look forward to hearing what the Minister has to say.

Justine Greening: I, too, add my support to the amendments. In particular, I support the proposal to specify mental welfare in the Bill, which is wise for several reasons. First, it would align the Bill with the explanatory notes. The Bill will obviously have to be enforced when it becomes law, but its main aim is the prevention of cruelty. In the real world, people are first alerted to an act of cruelty by hearing the mental distress of animals—for example, they may hear them yelping or squealing in pain. To include mental suffering in the Bill would send a clear message to the public that when they pick up on that suffering, they should report it. To exclude mental suffering may lead people to think that if they have not seen the animal physically hurt, there cannot be a prosecution. We should be conscious of how the proposal is interpreted, not just in the courts but by the general public, and structure it to ensure that the public feel that they can play a role in helping to prevent animal cruelty.

Barbara Keeley: In whatever way we achieve it, it is important to ensure that the Bill makes it clear that animal suffering covers mental as well as physical suffering. As hon. Members have said, the best way to do so might be to consider clarification of the interpretation in clause 56.
Neglect gives rise to many types of mental suffering. Hon. Members will have seen, and be aware of, many types of neglect and the Bill must be clear about that because it will aid prosecutors and the courts.

Shona McIsaac: I think the Minister will find that every member of the Committee will support the inclusion of mental suffering in the Bill. As hon. Members have said, the 1911 Act alluded to mental suffering in the terms ''cruelly infuriate'' or ''cruelly terrify''. Those words summarise what we are talking about; there is merit in adding the words in the amendment to the Bill, and the amendment would be simple and straightforward to introduce. As my hon. Friend the Member for Sherwood said, the words could be added to clause 56, which is headed ''General interpretations''. Will the Minister make that simple amendment on Report? We are considering the  Animal Welfare Bill, and an animal's mental welfare is as important as its physical welfare. I therefore hope that he will take the suggestion seriously and add the suggested words later in Committee or on Report.

Ben Bradshaw: I understand the concerns expressed by members of the Committee who are worried that the Bill will not protect animals from mental abuse. Let me make it clear that the Government believe that suffering includes mental suffering. My hon. Friend the Member for Cleethorpes reminded the Committee of the quaint wording of the 1911 Act, which refers to certain types of mental suffering infuriating or terrifying an animal. That is too prescriptive and limiting an interpretation of mental suffering and underlines why it is undesirable to prescribe what constitutes mental cruelty.

Shona McIsaac: The feeling of the Committee is not that we want to be prescriptive but that we want the words ''mental suffering'' added to the Bill. That is what we are getting at; we do not wish to define the term. Given that the 1911 Act contained those quaint words, the fact of their vanishing could cause certain magistrates to feel that they no longer apply. I am worried about that. We must be very clear so that magistrates know that mental cruelty is covered in the Bill.

Ben Bradshaw: I shall try to reassure my hon. Friend further. Most people accept that we have moved on since 1911. We live in a society in which most, if not all, people accept that suffering can be mental as well as physical. The question that I am putting to the Committee is whether it is necessary to spell that out in the Bill. I have listened carefully to what my hon. Friends the Members for Sherwood and for Worsley (Barbara Keeley) have said about the scope for including a definition of suffering in clause 56, for example, and I will think carefully about that suggestion.
To pick up the point made by the hon. Member for Leominster about the chicken code, we intend to introduce such codes to spell out much more clearly and explicitly what constitutes suffering. I am sorry that hon. Members do not have those codes in front of them already as I hoped they would; my officials assure me that the Committee will have them by this afternoon's sitting. We have produced a draft cat code to give the Committee an idea of how the codes of good practice mentioned in the Bill will look. When hon. Members read it, they will find that, very much like the chicken code, it includes many examples whereby the welfare needs of a cat would be considered not to have been met as a result of mental suffering. The point of the legislation is to ensure through the welfare offence that those responsible for animals do not think solely about preventing overt physical cruelty. Bearing in mind what I have just said about looking again at the potential for a change to clause 56, I hope that hon. Members will not press their amendments.

Bill Wiggin: I am not quite sure, but I think that the Minister said that he would go away and think about the matter. I suspect that if we push him harder, he might return with his own amendments at a later stage. I am content with what he said. There is an unwritten  risk that it is difficult to prove mental suffering alone in creatures that cannot speak, and I am sure that the Minister will bear that in mind. I would be content to withdraw my amendments, but I do not lead on this group.

Norman Baker: The amendment is in our name, or at least that of the Liberal Democrats. I have listened to what the Minister says, and I hope that he has listened to what the Committee says; I am confident that he will have done. There is a common view across all the Committee that there is a need to include some reference to mental suffering in the Bill, and that seems to be the view of all Members who have spoken, and even, perhaps, that of the Minister himself. The reasons are clear: it could be seen as watering down the 1911 Act, as the hon. Member for Cleethorpes rightly said. Secondly, although there is probably more understanding that mental suffering can exist than there was 100 years ago, that understanding is not unanimous or universal. There is, therefore, a possibility that if it were not mentioned explicitly, particularly in relation to animals, it could be deemed not to be included by some unhelpful judge at some point in case law. Those are two good reasons for including the phrase in the amendments.
Is there a reason for not including those words? The Minister talked about prescriptive lists, and members of the Committee accepted that point. I certainly admit that he is right on that, as did the hon. Member for Cleethorpes. We do not want to go down that road, for reasons that he understands. However, including the words ''whether mental or physical'' or some other variation is not prescriptive. In fact, it would be a general definition, which adds to the Bill rather than subtracting from it. I am not particularly wedded to the words in amendment No. 5. If the Minister wants to come back with something else, I shall be perfectly happy and am happy to withdraw the amendment. However, I hope that he will have taken the temperature of the Committee and realise that something has to be done: there is a general wish for something to be in the Bill. If he can find some way of doing it, that would be great, but we shall have to have something, either later in Committee or on Report. 
Amendment, by leave, withdrawn.

Norman Baker: I beg to move amendment No. 6, in clause 4, page 2, line 41, leave out ', property'.

Roger Gale: With this it will be convenient to discuss the following amendments:
No. 191, in clause 4, page 3, line 1, leave out paragraph (d). 
No. 200, in clause 4, page 3, line 2, at end insert— 
'(da) whether the suffering was caused in the furtherance of any commercial activity;'. 
No. 99, in clause 4, page 3, line 6, at end add— 
'(4A) Nothing in this section applies to the destruction of an animal for the benefit of another animal in a manner not dissimilar to that which could be witnessed in the wild.'.

Norman Baker: This is what is commonly known as a probing amendment. I want to explore the issues.  Amendment No. 6 would remove from the reasons that excuse unnecessary suffering the protection of property. I am instinctively uncomfortable with the idea that somebody can justify what would otherwise be called unnecessary suffering, simply in order to protect property. If there is a need to protect a person or an animal, which are the categories listed in subsection (3)(c)(ii), they seem to be sensible inclusions in the Bill. However, I have a greater difficulty accepting in my own mind that it is acceptable to cause what would be otherwise unnecessary suffering simply to protect property. It may be that there are circumstances that I have not considered and that the Minister can justify the inclusion of that word, but on the face of it, the argument that something that is inanimate can be protected, while an animal that has feelings and is a sentient being can suffer in the process, seems to be inherently difficult to justify.

David Drew: This will be a very rapid speech, because as I have already made clear, I have to be next door. I hope that my hon. Friend the Member for Sherwood will listen carefully to what I am saying and will fill in more detail. Will the Minister say why the clause has been changed from the draft Bill? I have conflicting evidence from animal welfare charities about the implications of this clause. At one extreme, there is a view that it drives a coach and horses through what we are trying to do in clarifying what may be prosecuted as an offence of cruelty, and at the other end, what may transpire as a defence of cruelty if we set the hurdle too low. Somebody might be able to argue that they were carrying out their normal role of training an animal and were not being cruel. I want the Minister to explain why the Bill has been changed. The draft Bill was clear that cruelty is definable and that in practical terms it can be the subject of prosecution. Why have we now given what seems to be a defence to people who, as part of their so-called training of an animal, wish to indulge in what to most of us is a cruel act?

Bill Wiggin: I shall speak only to amendment No. 99, which is a gentle, probing amendment. It seeks to uncover the Government's intentions regarding circumstances in which an animal may act instinctively in a way that causes harm to another animal. I do not think that the present draft of the Bill caters for such unfortunate events, and I am not even sure that the example I am about to give is completely adequate. If a pet cat left alone in its owner's garden attacked a bird or mouse, as its instincts would dictate, we would be left wondering whether the owner would be liable if the bird or mouse were injured. As the bird would be wild, that is not as good an example as those of a tame bird or a dog attacking a cat or of animals in a zoo or wildlife park that become involved in a fight. I hope that the Government can clarify the position.

Paddy Tipping: My hon. Friend the Member for Stroud asked me to make the case for his amendment No. 191, but I think that he made the case well himself, and I just want to reinforce it and remind the Minister that the point was raised on Second Reading. The right hon. Member for Maidstone and The Weald (Miss Widdecombe) raised it, supported by her hon.  Friend the Member for Banbury (Tony Baldry), so the Minister will be aware that there is concern across the Chamber.
As my hon. Friend the Member for Stroud, who has also served on the EFRA Committee, pointed out, there has been a change in the drafting of the Bill. My real concern, however, which is simple, is that the clause as it stands offers a defence 
''where the suffering was proportionate to the purpose of the conduct concerned''.
The central argument and the key example concern the fact that, as currently drafted, the Bill appears to offer a possible defence when an animal in training is subjected to abusive treatment in order to produce the right kind of conduct or performance, although behaviour such as beating an animal would not be acceptable during performance itself. As the Bill stands, there is at least a possibility that such a defence could be used. I am sure that that is not the intention of the Bill, but that is the concern, because it would make prosecution more difficult. Like my hon. Friend the. Member for Stroud, I shall listen carefully to what the Minster says.

Philip Hollobone: I shall speak to amendment No. 200. While I agree with what the hon. Gentleman just said, I approach the issue from a different angle, because the purpose of my amendment is to add the words
''whether the suffering was caused in the furtherance of any commercial activity.''
That is a relevant consideration in determining whether an offence has been committed. 
Because animals have to take whatever we dish out, it is right to create a proper legal framework to ensure that any suffering that may be inflicted is both necessary and minimal. Legislation should recognise that animals may be required for commercial purposes to pull loads, bear weights, race, or search for people, drugs or explosives. If animals are deliberately being put into an environment that uses their instincts and training for the purposes of a trade or business, it is reasonable to expect the management of that business to have carried out a proper risk assessment of harm to the animal. Such actions should be open to question when considering suffering.

Angela Smith: I support the comments made my hon. Friends the Members for Stroud and for Sherwood. Their argument is very strong that subsection (3)(d) offers a defence that may allow many individuals who make animals suffer in the course of training to get off the hook. I would, however, apply that argument to the whole subsection, and would appreciate it if the Minister reconsidered the wording, which offers far too much by allowing an argument to be made in court that the Bill contains a strong defence, which could undermine subsection (1).

Justine Greening: The phrase that the hon. Lady may be looking for is that this could be a get-out clause for people to use in a court of law.

Angela Smith: That is the fear that many members of the Committee are expressing. On the other hand, I understand many of the reasons for including such a defence in the Bill, such as protecting a person. My hon. Friend the Member for Cleethorpes referred to the case of the lions in Grimsby. During that escape, one of the lions managed to get one of the citizens of Grimsby into a death grip, and a police car had to ram the lion into the wall to save the man's life. I am sure that that man is extremely grateful that the local police caused suffering to the animal in order to save his life. In that case, the police had a clear defence.
It is also clear that any individual who deals with a dog that is attacking a young child also needs such a defence. We all know of terrible cases in which young children have been badly damaged and mutilated by animals that are out of control or that have suddenly gone on the attack. We all know what it is like to canvass households with dogs that sometimes seem to be trained to attack politicians, whether they are Tory, Labour or Liberal Democrat. There was a very unfortunate case in Sheffield in which one candidate was attacked by a dog that had been nowhere in sight but suddenly came from behind the house and down the passageway and mutilated him very badly. I completely understand why it is felt that there is a need to include a defence against that sort of activity and a protection for any person trying to contain or restrain an animal in the process of attacking another individual, or, indeed, another animal or property. An animal running amok in a property can be a danger to other human beings, but I ask the Minister to reconsider the subsection, because it leans too far in the defence of individuals who may use it as an excuse when they are being prosecuted for causing suffering, and it is quite unnecessary.

Ben Bradshaw: I hope that I will be able to reassure my hon. Friends the Members for Sheffield, Hillsborough, for Sherwood and for Stroud and the hon. Member for Putney (Justine Greening) that this is not a get-out clause.
I am slightly perplexed by the suggestion made by my hon. Friend the Member for Stroud that the clause has changed since the draft Bill. I do not know whether hon. Members have copies of that Bill, but I can certainly circulate my copy. The wording was exactly the same in the draft Bill, although the numbering was different, which may have led to some of the confusion. Clause 1(3)(c), (d), (e) and (f) were the relevant passages, and in relation to all the issues raised in the amendments and by hon. Members in their comments, I see no change in the wording. I am prepared to be corrected once Committee members have had a chance to study it, but I think it important to make the point that there has been no such change as the one my hon. Friend referred to. 
All the amendments would modify the exemptions to the offence of causing unnecessary suffering. Amendments Nos. 6, 191 and 200 are intended to modify the scope of clause 4(3) in relation to the considerations that are relevant when determining whether suffering is unnecessary. Amendment No. 99 is concerned with a blanket exemption from the offence. First, I shall say something about the clause,  because several concerns have been expressed. Subsection (3) is a list of relevant considerations. It is not a list of absolute defences. It was not intended in that way in the draft Bill, and it is not so in the Bill before the Committee. The opening wording of subsection (3) makes that clear when it refers to the 
''considerations to which it is relevant to have regard when determining for the purposes of this section whether suffering is unnecessary''.
The subsection lists factors that a court may or may not take into consideration in determining whether an animal's suffering was unnecessary. It may take other factors into consideration also. The list is not exhaustive. Some of the listed factors may not be relevant, and the court will therefore not take them into account. 
On amendment No. 6, I reassure hon. Members that the inclusion of the protection of property in subsection (3) does not mean that protection of property becomes an absolute defence to the offence of cruelty. It merely means that the protection of property is one factor that a court may take into account in determining whether suffering was unnecessary. It is not a sign of a belief on my part that property rights should in some way trump animal suffering. It simply reflects the reality that in some circumstances—I shall give a couple of examples in a moment—the protection of property may justify some level of animal suffering. 
An example that has often been quoted is the use of riot horses by the police. The police use riot horses sometimes as the most effective means of protecting people and, in some cases, of protecting property from damage and destruction. Sometimes, unfortunately, riot horses will be injured. In principle, the police who take them into those situations could be held responsible for their unnecessary suffering, by virtue of clause 4(2). I hope that no hon. Members would disagree with my view that riot control is an important and legitimate purpose, that it provides an example of legitimate protection of property, and that we do not want police officers taken to court because of injuries suffered by their animals. 
A further example might be the use of guard dogs. Dogs are used by private individuals. That would not be my choice of property protection, but it is some people's choice. It is legitimate to protect property, and those dogs can be injured by persons who threaten it. A burglar might hit, kick or even shoot a dog that attacked.

Bill Wiggin: In the example about police horses, the person who is rioting, and thus injuring the police horse, should be prosecuted. The same goes for the burglar who breaks in and kicks or attacks the dog. Those examples do not tally with the effect of the amendment. I hope that the Minister has another example.

Ben Bradshaw: If the amendments were accepted, the police officer or property owner could be liable for the suffering inflicted on their animal by a third party. The dog is used for the protection of property, and I  consider that a legitimate use of the animal. I reassure hon. Members that a court should also take into account the factors in clause 4(3) in determining, in a particular case, whether the suffering inflicted was unnecessary. It would consider whether the suffering could reasonably have been avoided or reduced, such as by a different method of riot control. In addition, it would consider whether the suffering was proportionate to the purpose of the conduct. I do not consider that the owner should be held responsible under clause 4(2) for the suffering inflicted on the animal while it was protecting his property, as long as the court felt that the balance of factors in subsection (3) weighed in favour of the owner's conduct.
Amendment No. 191 would remove the consideration of whether the suffering of the animal was proportionate to the purpose for which that suffering was inflicted. I listened carefully to what my hon. Friends said, particularly with reference to the training of circus animals. We will come to debate circuses—at some length, I predict—later in Committee. 
Up to a point, there are some situations in which a level of animal suffering can be justified, but there must come a point at which the suffering becomes unnecessary, even in view of a particular situation. As a general rule, the provision aims to ensure that any suffering inflicted on an animal does not exceed the level of suffering necessary in the circumstances. There is case law on the subject, and I will go into it in more detail if Committee members would like me to. 
To give an example, if a farmer carried out a farm management procedure on an animal that caused it to suffer more than another method would have done, and did so in order to maximise his profits, the court would have to consider whether the suffering the animal experienced was proportionate to the farmer's aim. That takes us back to past case law; in one case, a farmer was successfully prosecuted for de-horning cattle without using anaesthetic because it was cheaper and saved him money. That is an example of a case in which a court used the ''proportionate'' argument. 
Amendment No. 200 concerns commercial activities. I am not entirely clear about what the hon. Member for Kettering (Mr. Hollobone) says, although I think that he is implying that certain commercial activities should be considered in a positive, rather than negative, way for the purpose of his amendment. Either way, I do not agree that we should include that provision in subsection (3). 
Taken as a whole, subsection (3)(c) is concerned with whether the conduct that caused the suffering was for a legitimate purpose. As a matter of general principle, commercial activities involving animals are entirely legitimate, but I acknowledge that involvement in a commercial activity may introduce considerations that conflict with animal welfare; as I mentioned, it may be in an individual's financial interests to keep his animals in a poorer condition if he is involved in commercial activities. That is why we have asked for the power to make regulations in order to introduce an additional layer of regulation on commercial activities. Ultimately, additional offences  will be created to deal more specifically with those situations, and I do not think it advisable to embark on a modification of the general offences in the Bill in order to try to deal with all those situations by including a provision such as that in amendment No. 200. 
Finally, I think that amendment No. 99 is an attempt to exempt the feeding of live vertebrate prey to other animals; if I am mistaken I will end my comments there. This issue has been raised by some people. Most captive-bred carnivorous predators would accept meat or carcases as their diet. Some people have suggested to us that there may be occasions on which it is necessary to feed live vertebrates to predators—for example, when predatory animals refuse all alternatives. I understand that that specifically relates to the feeding of live rodents to snakes. 
Although I understand that it may on rare occasions be considered necessary to feed a live vertebrate to a predator to encourage it to eat, the Government believe that the Bill provides the necessary balance for the courts to decide whether an offence of suffering or poor welfare has been committed. The practice of feeding animals in that way is not something that the Government wish to condone, and in fact I believe that it is extremely rare. But we would not wish to offer a blanket exemption to the practice, as it could be used as a loophole to cause suffering. 
The offences in the Bill are drafted in such a way that where suffering is inflicted on a live vertebrate by feeding to a predator, the court can take that circumstance into account. It could be a ''legitimate purpose'' under subsection (3) or a circumstance to which the courts would have regard in determining whether reasonable steps were taken to meet the animal's welfare needs under clause 8(1). On that basis, I urge hon. Members not to press their amendments.

Bill Wiggin: I am grateful for that interpretation of amendment No. 99. In fact, I was offered the feeding of live rodents to snakes as an example to give the Committee, but I am not particularly happy with it, because it is actually rather dangerous to feed live rodents to snakes; very often the rodent fights back and does more harm to the snake than does feeding it in another way. That is not the intention of the Bill, and I agree with what the Minister said about that. The amendment is really to do with who is liable if an animal fights with another animal, and I suspect that that goes beyond this Bill, which is why it is a probing amendment, as I said.
However, on the Minister's other points, particularly with regard to police horses, I am not sure he is right that withdrawing the word ''property'' makes the police liable. Perhaps he would like to think about that? 
In respect of amendment No. 99, I wanted to learn the answer to the following question: in the unfortunate event of one animal attacking another, at what point is the owner of either animal liable—or, rather, in breach of this legislation?

Norman Baker: As the mover of amendment No. 6, let me respond, particularly to the point about the word ''property''. I am unconvinced by what the Minister said, and I have concerns.
The Minister cited in his defence police horses and guard dogs. Those are animals that will have been properly trained—by the police or by the company that owns the guard dogs. They will therefore have been trained to deal with the situations in which they find themselves; they will be more capable of doing so than other animals would be. They would not necessarily be caused suffering, mental or otherwise, merely by the environment they are in. Suffering would be caused to animals in that situation if, for example—as one sometimes sees—protesters attempted to harm such animals in order to get them to rear. In such circumstances, there is a sensible defence for the police: they have trained the animal properly, and the environment it is in is not inappropriate for it. The perpetrator of the suffering is the person or persons who have caused it to suffer—namely the protesters in the example I have given. Therefore, I do not think it is necessary to include property to protect the police or those who have trained guard dogs. 
The inclusion of the word ''property'' could be counter-productive in a different sense. It might be used in a subsequent court case to justify something that the Minister would not agree with, and which he has not given as an example: someone might say in a defence argument, ''Well, this is property, and we are told in this legislation that property is a legitimate reason for causing unnecessary suffering.'' I could say that I had expensive property, such as a valuable piece of equipment or a coat that was worth a lot of money, and an animal was attacking it and causing me great concern, so I prevented the animal from destroying it.

Shona McIsaac: Would the hon. Gentleman care to comment on a letter I received from a constituent who has a real downer on cats going into his garden? He has written to me to say that if he could shoot them, he would. Does the hon. Gentleman feel that that defence could be used if property was included?

Norman Baker: I sincerely hope not, but I fear that it might be. That is a perfectly legitimate point. If ''property'', a word that is wide open, is included, that raises the possibility of many different sorts of defences.
I am not happy with the Minister's response on this matter. If he is prepared to tell me that he will look into it again, I will withdraw the amendment, but if he is set on his response, I feel that I must press the amendment to a Division. 
There is one other point that I would like to raise in a clause stand part debate; I can do so now if you wish, Mr. Gale, or I can raise it following our discussion on this amendment.

Roger Gale: It is clear that we will not reach the end of this clause before lunch, and I would not wish to bind Mrs. Humble on whether a stand part debate is  appropriate, so I think it is better to leave that matter and to raise it later.

Norman Baker: I look to the Minister to see whether he wishes to say anything further. If he does not, I will seek to press the amendment to a Division.

Ben Bradshaw: I fear that the hon. Gentleman may need to do that, because the examples he has given of a burglar or a rioter being responsible for the welfare of an animal if they attack that animal are covered by the legislation. What this clause attempts to do is allow the courts to take certain matters into consideration if a prosecution is taken out against the police or a householder because their animal—their police horse or guard dog—is injured in the course of legitimately protecting private property. I think we are arguing in circles; I do not think there is a fundamental disagreement between us.
I am sorry that I jumped to conclusions about the origins of one of the amendments in the name of the hon. Member for Leominster—the feeding of wild animals to snakes. In answer to his question about what happens if an animal causes another protected animal suffering, if the owner of that animal has taken reasonable measures to prevent that from happening, they will not be liable. However, if they have not, they may be liable. I hope that that gives the hon. Gentleman the clarity he seeks.

Angela Smith: On a point of clarification, the impression I get from the Minister's comments is that we are discussing the owner of an animal, so a householder who restrains an animal and perhaps hurts it in the process of preventing damage to property or persons in the house would not be liable to prosecution. What happens if another adult in the house, who is not the owner of the animal, prevents it from injuring a child? Is that person still protected from prosecution? I would certainly hope so, but the impression given is that it is the owner who is covered by the provisions.

Ben Bradshaw: As I pointed out in my initial remarks, none of this is an absolute defence but, in the unlikely event that someone were to prosecute a person who had prevented an animal from attacking a child and had injured the animal to some extent, the clause will allow the court to consider those circumstances as part of the defence. That is why the clause is included in the Bill.

Bill Wiggin: I am grateful for what the Minister said about animals fighting. I was going to talk about, for example, when dogs fight in a park. If the owners have them on a lead, they have taken suitable care of their animals and would not be liable to prosecution. However, a person whose dog was off the lead would be liable, which is why I am slightly concerned.
Regarding the comments of the hon. Member for Lewes about voting on the amendment, will the Minister clarify that it is his legal understanding that if the word ''property'' were removed, well-meaning but perhaps slightly muddle-headed people might prosecute the police for other people's attacks on their police horses? That strikes me as a very odd case  for the courts to deal with, but it is my understanding of the current position. By including the word ''property'' in the Bill, we can cut the number of prosecutions of good, animal-loving, sensible people like the police and those who might use a guard dog, who are attacked by vicious and unpleasant criminals.

Norman Baker: As a matter of record, people can institute a prosecution if they want to in any case. Whatever the legislation says, it does not affect the number of prosecutions; it is a question of whether the defence is there. I believe that the defence is there anyway without the word ''property'', which has all sorts of wider connotations.

Bill Wiggin: I am grateful for that intervention. The Minister can now clearly see what he has to do to convince us. I am happy about amendment No. 99.

Norman Baker: I want to press amendment No. 6 to a vote.
Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Bill Wiggin: I beg to move amendment No. 98, in clause 4, page 3, line 4, at end insert—
'(3A) For the purposes of this section, an act of abandonment shall be considered to be a form of unnecessary suffering. 
(3B) In this section, ''abandonment'' is to mean when an animal protected under this Act is, without lawful reason or excuse, deliberately discharged from the control of man without any future provisions for care being established.'.

Roger Gale: With this it will be convenient to discuss amendment No. 14, in clause 8, page 4, line 29, at end insert—
'(3A) If an animal has been abandoned, any person who immediately before that time was a keeper of the animal shall continue to be a keeper of the animal for the purpose of this section until another person becomes keeper of it.'.

Bill Wiggin: The intention of amendment No. 98 is to state explicitly how an abandonment offence would fit into the Bill. As the Bill is drafted, animal abandonment could be classed as an offence of cruelty, unnecessary suffering or welfare. We may find that some people who have abandoned an animal will be prosecuted under clause 4, while others will be prosecuted under clause 8. That legal inconsistency is unacceptable.
When an animal is abandoned by its owner or the person responsible for it, that incredibly cruel and vicious act should be treated as such. Not only would the amendment make that happen, but it outlines the criteria of what constitutes animal abandonment.

Greg Mulholland: As I made clear on Second Reading, it concerns me that abandonment is an offence only if it can be shown that suffering has occurred as a result. Clearly, that should be rectified.
I am looking for reassurance from the Minister that there is not a loophole in the Bill that could lead to someone being able to abandon an animal in a way that would be acceptable. For example, a person could leave an animal on the doorstep of a well known, good animal shelter, ring the bell and run away. They would know full well that that animal would be fully cared for and that there would be no question of it coming to any harm or suffering or even of its welfare being neglected. My concern on this issue is not necessarily covered by the welfare provision in the Bill, never mind the cruelty provision. I do not believe that the reassurance I am looking for is in the Bill. 
Together, the amendments could be very useful. Subsection (3A) in amendment No. 98 makes it clear that abandonment should be an offence in itself, and I welcome that. Subsection (3B) gives a definition, and that is important. Amendment No. 14 has a clarification of ownership, which is also important. 
Together, the amendments tabled by the hon. Member for Leominster and by me make a strong and clear case for dealing with the issue of abandonment. The Pets Advisory Committee is clear on this issue; it says that abandonment should continue to be a specific offence. Regardless of the assurance given by the Minister that abandonment will be covered by the duty of care, 
''the PAC considers this dilutes the severity of the offence as it removes it from the deliberate cruelty section of the Bill.''
It is important that the issue is addressed. Like many of the organisations involved, I have concerns and I seek reassurance from the Minister that the issue is properly covered.

Ben Bradshaw: As I am sure Committee members know, the Government are committed to a better regulation agenda, and that means that we try to simplify things when possible. With that in mind, the Department has simplified the Bill considerably since its first draft. If a provision did not add anything to the substance of the Bill, it has been removed. One example of that is the offence of performing an operation without due care and humanity; we considered that that did not add anything of substance to the cruelty offence in clause 4.
Abandonment is another example. We have decided that it is not necessary explicitly to replicate the Abandonment of Animals Act 1960. As hon. Members have already implicitly acknowledged with these amendments, abandonment is merely one way in which welfare or cruelty offences can be committed. If someone abandons an animal and it is unable to fend for itself, that person will have failed to take all reasonable steps to ensure that its needs are met. Consequently, he or she is likely to have committed the welfare offence in clause 8. If suffering occurred as a result of the abandonment, the cruelty provisions in clause 4 would be engaged. 
Our view is that an explicit provision is unnecessary. We are also aware of some issues of definition that would arise if the term ''abandonment'' were included in the Bill, and I touched on a couple of those on Second Reading. I simply reiterate that trying to draft a definition that does not catch, for example, the release of game birds, of fish into streams or ponds, or of animals on to common land, is exceptionally difficult. 
It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
Adjourned till this day at Four o'clock.